might acquire considerably more weight as an encroachment (see C. III. 2. c below).
Nor does a particular weight of the encroachment result from the fact that the data of
§ 111 TKG, taken in context, permit individual telecommunications events known to
the authorities to be attributed and thus in certain circumstances make it possible to
obtain individualised knowledge of their circumstances or their content. For in this
way all that is made possible from the outset is the investigation of individual events
where required by a specific case. In these cases, the authority already knows the circumstances or the content of the telecommunications event which is to be individualised with the data of § 111 TKG, whether because the authority has found them by
investigation within its own competence – for example on the basis of § 100g of the
Code of Criminal Procedure (Strafprozessordnung – StPO) – involving encroachment
upon the secrecy of telecommunications, whether because it has learnt of them
through its own observations or from third-party information without such an encroachment. In the same way, conversely no particular weight of the encroachment
results from the fact that a retrieval of telecommunications numbers may be followed
by further measures which in certain circumstances may entail serious encroachments, including encroachments upon the secrecy of telecommunications. For such
further encroachments are only permissible under independent legal bases, which
must take account of the weight of the encroachment in question.
140
cc) The possibility of attribution of the data collected in § 111 TKG serves the effective performance of the duties of the authorities defined in more detail in the provisions on use. It is constitutionally justified by the fact that the state may have a legitimate interest in successfully investigating particular telecommunications events if
occasion arises, and this interest in the performance of particular tasks may have
considerable weight, in individual cases even pre-eminent weight. It may not be cited
in opposition to this that direct communication without means of telecommunications
has no comparable encroachments. For the situation in that case is different. Because direct communication does not resort to technical means of communication
which make it possible, without public observation, to interact over any distance in real time, it has no comparable basis, nor is there a comparable necessity for such a
register. The traditional powers of investigation, for example the examination of witnesses or the seizure of documents, are more useful for clarification here than they
are with regard to communication by means of electronic services. However, it is correct that even the possibilities of the modern means of telecommunications provide
no justification for registering, if possible, all activities of citizens by way of precaution
and making them basically reconstructible in this way (see BVerfGE 125, 260
<323-324>). But there is no question of this when a register of telecommunications
numbers is established, even when account is taken of the interaction with other
available data.
141
3. Since the extent of the data to be stored under § 111 TKG – irrespective of the
constitutional requirement that their further use should not be disproportionate – is
constitutionally unobjectionable and the Federal Republic of Germany can thus at the
142
30/45